Court of Appeals for the 5th Circuit blasts prosecutors and affirms order for new trial

Back in September of 2013, I reported that U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up describing the conduct of Justice Department lawyers as “grotesque.”  See here.

Now comes news that the Court of Appeals for the Fifth Circuit has affirmed the order, echoing the sentiment about the misconduct by prosecutors.  The opinion states that

The government makes no attempt to justify the prosecutors’ ethical lapses, which the court described as having created an “online 21st century carnival atmosphere.” Not only that, but the government inadequately investigated and substantially delayed the ferreting out of information about its in-house contributors to the anonymous postings. The district court also found that cooperating defendants called to testify by the government lied, an FBI agent overstepped, defense witnesses were intimidated from testifying, and inexplicably gross sentencing disparities resulted from the government’s plea bargains and charging practices.

Like the district court, we are well aware of our duty normally to affirm convictions that are tainted only by harmless error. In this extraordinary case, however, harmless error cannot even be evaluated because the full consequences of the federal prosecutors’ misconduct remain uncertain after less-than-definitive DOJ internal investigations. The trial, in any event, was permeated by the cumulative effect of the additional irregularities found by the district court. We conclude that the grant of a new trial was not an abuse of the district court’s discretion.

You can read the full opinion is available here.


Thanks to the Legal Ethics Forum for the update.